Terms of Sale
(a) In these conditions:
- Buyer means the purchaser of the Products.
- Products means the goods specified in an order by the Buyer.
- Seller means BEAN BAGS R US PTY. LTD. ATF UNIVERSAL IMPORTS TRUST (ABN 58 990 571 912) of Miami Business Centre, 2190 Gold Coast Highway, Miami, Queensland 4220, which is the seller of the Products.
- (b) Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
- (a) In these conditions:
These conditions (which shall only be waived in writing signed by the Seller) shall prevail over all conditions of the Buyer's order and any other terms and conditions, to the extent of any inconsistency.
Terms of sale
The Products and all other goods sold by Seller are sold on these terms and conditions.
- (a) The cost of any special packing and packing materials used in relation to the Products at the Buyer’s request are at the Buyer's expense unless otherwise agreed.
- (b) Where possible, Products are flat packed to reduce shipping costs. The Seller does not sell, pack or ship pre-filled bean bags or other goods, unless otherwise agreed in writing.
The Buyer waives any claim for shortage of any Products delivered if a claim in respect for short delivery has not been lodged with the Seller within 7 days from the date of receipt of Products by the Buyer.
- (a) All specifications, drawings, and particulars of weights and dimensions submitted to the Seller are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.
- (b) The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Products or of the description applied to the Products.
- (c) Where specifications, drawings or other particulars are supplied by the Buyer for the purposes of the Products order, the Seller's price will be calculated on the basis of estimates of quantities required to provide the Products as specified, drawn or otherwise particularised by the Buyer. If there are any adjustments in quantities above or below the quantities estimated by Seller as set out in a quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.
Any performance figures, characteristics or other attributes given by the Seller are estimates only. The Seller is under no liability for damages for failure of the Products to attain such figures, characteristics or other attributes unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures, characteristics or other attributes.
- (a) Unless otherwise stated, delivery charges are in addition to the price for consumer sales. For trade, commercial or wholesale sales, delivery charges are in addition to the price of the Products and are payable by the Buyer.
- (b) The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
- (c) The Seller will not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery of the Products.
- (d) The Seller may at its option deliver the Products to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.
(e) If the Seller delivers any of the Products by instalments, and any one of those instalments is defective for any reason:
- (i) this does not constitute a repudiation of the contract of sale formed by these conditions; and
- (ii) the defective instalment is a severable breach that gives rise only to a claim for compensation.
Loss or damage in transit
- (a) The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Products in transit caused by any event of any kind or by any person (whether or not the Seller is legally responsible for the actions of that person).
(b) The Seller must provide the Buyer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Products in transit so long as the Buyer:
- (i) has notified the Seller and the carrier in writing immediately after loss or damage is discovered on receipt of Products; and
- (ii) serves a claim for compensation on the carrier within 3 days of the date of receipt of the Products.
Guarantee & Warranty
(a) Subject to clause 12, the Seller's liability for Products manufactured by it is limited to making good any defects by repairing the defects or at the Seller's option by replacement, within a period not exceeding 12 calendar months after the Products have been purchased so long as:
- (i) the defects have arisen solely from faulty materials or workmanship;
- (ii) the Products have not received maltreatment, inattention or interference;
- (iii) accessories of any kind used by the Buyer are manufactured by or approved by Seller;
- (iv) the seals of any kind on the Products remain unbroken; and
- (v) the defective parts are promptly returned free of cost to the Seller.
- (b) If the Products are not manufactured by the Seller the guarantee of the manufacturer of those Products is accepted by the Buyer and is the only guarantee given to the Buyer in respect of the Products. The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Products that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
- (c) The Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any Products supplied unless such design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing. In any event the Seller's liability under this paragraph is limited strictly to the replacement of defective parts in accordance with paragraph (a) of these conditions.
- (d) Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Products for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Products or arising out of the Seller's negligence or in any way.
- (e) This warranty shall be the sole and exclusive warranty granted by the Seller and shall be the sole and exclusive remedy available to the Buyer in addition to any other rights under a law in relation to the Products to which this warranty relates.
- (a) Subject to clause 12, the Seller's liability for Products manufactured by it is limited to making good any defects by repairing the defects or at the Seller's option by replacement, within a period not exceeding 12 calendar months after the Products have been purchased so long as:
The Seller's liability for a breach of a condition or warranty implied by Pt 3-2 Div 1 of the Australian Consumer Law is limited to:(i) the replacement of the Products or the supply of equivalent goods;
- (ii) the repair of the Products;
- (iii) the payment of the cost of replacing the Products or of acquiring equivalent goods; or
- (iv) the payment of the cost of having the Products repaired at the Seller’s discretion.
Specific exclusions to the Seller’s warranty and liability
Without limiting clause 10 or any other term of this agreement, the Seller excludes the following from any guarantee or warranty and, to the extent permitted under law, any liability for any damage occurring as a result of misuse, or as a result of the following:(i) Products are not suitable for use by children under the age of 12 months. Bean Bags are not toys and a child should not be permitted to climb inside a Bean Bag;
- (ii) Products and in particular Bean Bags contain small lightweight beads that are dangerous if swallowed of inhaled. Children and other persons, as well as pets may suffocate causing injury or death;
- (iii) Pool Bean Bags are not lifesaving devices and are not fit for such purpose;
- (iv) Outdoor Bean Bags are not suitable for immersion in water and are not fit for such purpose;
- (v) Damage as a result of failing to clean or maintain Products resulting in mould or mildew
- (vi) Dog Beds are resilient but are not bite-proof. Bite damage is excluded;
- (vii) Certain Products are fitted with childproof zippers that are designed to prevent accidental opening and spillage of contents. Instructions are provided with each of these Products as to the correct manner of operation. Damage due to the application of excessive force or the use of any tool that is not recommended by the Seller is abnormal service and handling and is excluded;
- (viii) Certain Products are fitted with velcro fasteners which should not be operated with excessive force. Such damage is excluded;
- (ix) Where a Product is indicated as “non-machine washable”, damage as a result of machine washing is excluded;
- (x) Products that are covered with Micro-Suede material are not suitable for use on or near light-coloured walls, carpets or rugs. Micro-Suede is not colourfast and colour transfer may occur. Such damage is excluded;
- (xi) Damage to floors, floor coverings, walls and furniture as a result of the use of the Products (for example scratching of floorboards by zippers) is excluded;
- (xii) Any work performed by a third party to the Products at your request, including but not limited to screen printing, heat transfer printing or any other application of a material or process to a Product is excluded; and
- (xiii) Performance of a Product used in conjunction with an uncertified third party product (for example the use of ‘Ultra Low Noise’ filling in a third party bean bag) is excluded.
Indemnification of suppliers by manufacturers
The Seller's liability under s 274 of the Australian Consumer Law is expressly limited to a liability to pay to the Buyer an amount equal to:(a) the cost of replacing the Products;
- (b) the cost of obtaining equivalent goods; or
- (c) the cost of having the Products repaired,whichever is the lowest amount.
- Unless otherwise stated all prices are net, inclusive of Goods and Services Tax (GST), but exclusive of any other charges that may be imposed by way of customs charges, duties, excise, tax or impost for the export or import of the Products.
- The purchase price for the Products plus GST and any other charge or fee where applicable is payable in full upon ordering the Products, unless otherwise agreed in writing.
Rights in relation to Products
The Seller reserves the following rights in relation to the Products until all accounts owed by the Buyer to the Seller are fully paid:(a) ownership of the Products;
- (b) to enter the Buyer's premises (or the premises of any associated company or agent where the Products are located) without liability for trespass or any resulting damage and retake possession of the Products; and
- (c) subject to, and in accordance with, the Personal Property Securities Act 2009, to keep or resell any Products repossessed pursuant to (b) above. If the Products are resold, or products manufactured using the Products are sold, by the Buyer, the Buyer shall hold such part of the proceeds of any such sale as represents the invoice price of the Products sold or used in the manufacture of the Products sold in a separate identifiable account as the beneficial property of the Seller and shall pay such amount to the Seller upon request. Notwithstanding the provisions above the Seller shall be entitled to maintain an action against the Buyer for the purchase price and the risk of the Products shall pass to the Buyer upon delivery.
- Any property of the Buyer under the Seller's possession, custody or control is completely at the Buyer's risk as regards loss or damage caused to the property or by it.
- The Seller reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within fourteen days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.
Returned Products & Refunds
- (a) Except for any provisions to the contrary contained in this agreement, the Seller is not under any duty to accept Products returned by the Buyer.
- (b) The Seller may, at its sole discretion, provide a refund on the return of the Products within 30 days of the date of purchase where the packaging is unopened and the Products remain in a saleable condition. The Buyer acknowledges and agrees that it is liable for any postage and shipping costs associated with any refund pursuant to this clause. Offers of ‘Free Shipping’ exclude the costs of returning goods.
- (c) The Seller will refund the Buyer if an order is placed for Products that are either out of stock or pre-ordered where the Seller is unable to supply the Product within the required time frame.
- (d) The Seller does not accept returns or provide refunds for Products described as “bean bag filling” or “Bag of Beans”.
(e) The Seller does not accept returns or provide refunds if the Buyer:
- (i) has a change of mind, or purchased the Products as a gift which the recipient does not want;
- (ii) decides that the size of the Products is unsuitable;
- (iii) place an order for a bean bag cover in the incorrect belief that this includes the filling (which is sold separately). The Seller does not sell, pack or ship pre-filled bean bags or other goods, unless otherwise agreed in writing. Products are shipped flat-packed where possible.
- (iv) has damaged Products due to a lack of maintenance, abuse, abnormal service or handling or any act or omission which would entitle the Seller to exclude the Product from a Warranty;
- (v) has failed to read the relevant information in relation to the Products; or
- (vi) has ordered an incorrect quantity or an incorrect good and this is not due to a mistake by Seller.
- (f) Buyer agrees that where the Seller accepts a return, Buyer will be liable to pay a restocking fee of 10% of the total purchase price in addition to the original cost of shipping incurred by the Seller, which will be deducted from any refund payable to the Buyer.
(g) Where the Seller accepts a return the Buyer agrees to follow the following returns process:
- (i) complete the return form in full;
(ii) mail the Products (at the Buyer’s cost and risk) to:
Bean Bags R Us,
PO Box 417,
- (iii) include a signed letter stating the reason for the return and the original receipt as proof of purchase.
- All Products to be supplied by the Seller to the Buyer are as described on the order agreed by the Seller and the Buyer and the description on such order as so agreed prevails over all other descriptions of the Products including any specification or enquiry of the Buyer.
- No order may be cancelled by the Buyer except with the written consent of the Seller. In the event of a cancellation of the order by the Buyer, the Seller has the right to claim indemnity against all losses suffered by the Seller as a result of such cancellation.
- (a) Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach.
- (b) Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.
- (c) The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.
Place of contract
- (a) The contract for sale of the Products is made in Queensland, Australia from which this document is issued.
- (b) The parties submit all disputes arising between them to the courts of Queensland and any court competent to hear appeals from those courts of first instance.
This page was last updated on January 25th, 2017